United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
Michael P. Shea, U.S.D.J.
Bates, a legal secretary employed by the City of Bristol,
sued the City and city officials for violations of the
Connecticut Fair Employment Practices Act
(“CFEPA”), Conn. Gen. Stat. § 46a-60, and
Title VII of the Civil Rights Act, 42 U.S.C. §§
2000e et seq. (“Title VII”).
(see ECF No. 1-1). Bates claims that she was
sexually harassed and retaliated against for complaining
about such harassment. Defendants move to dismiss all 17
counts of Bates' complaint under Fed.R.Civ.P. 12(b)(1),
12(b)(5), and 12(b)(6). Defendants argue that Plaintiff
failed (1) to bring her action in a timely manner, (2) to
exhaust administrative remedies, (3) to serve process
properly on one defendant, and (4) to file her administrative
complaint in a timely manner.
following reasons, Defendants' Motion to Dismiss is
GRANTED as to Counts 5, 6, 7, 9, 10, 11, 12, 13, 15, and 17.
Defendants' Motion to Dismiss is DENIED as to Counts 1,
2, 3, 4, 8, 14, and 16.
following recitation of the facts is taken from Bates'
complaint, along with the exhibits attached to the
has been employed as a legal secretary in the office of the
Bristol Corporation Counsel since 2009. (ECF No. 1-1 at
¶¶ 5-6). Defendant Kenneth Cockayne has been the
Mayor of the City of Bristol, Connecticut
(“City”), since November of 2013. (Id.
at ¶¶ 10, 31). Defendant Edward Krawiecki, Jr. is
the Corporation Counsel for the City. (Id. at ¶
11). Defendant Diane Ferguson is the Personnel Director for
the City. (Id. at ¶ 9). Defendant Cindy
Cockayne Lamarre is an appointed official of the City and
serves as a member of the Bristol Zoning Commission
(Id. at ¶ 12). Bates claims that she was
sexually harassed by Cockayne and subsequently retaliated
against for complaining about such harassment. (see
ECF No. 1-1). In her complaint, Bates describes several
encounters with Cockayne, including one occurring in November
of 2011 when Cockayne allegedly grabbed Bates and forced her
into his lap while he watched a pornographic video in his
office. (Id. at ¶ 24). A second occurred on
October 24, 2013 when Cockayne allegedly put his hand up
Bates' skirt at a golf event at the Chippanee Golf Club.
(Id. at ¶ 27). Bates' complaint also
includes several comments made by Cockayne over the course of
her employment. In August of 2011, Cockayne allegedly invited
Bates to accompany him to a park “just to talk.”
(Id. at ¶ 19). In 2012 and 2013, Cockayne
allegedly told Bates that he could freely sexually harass her
because he was an elected official. (Id. at
¶¶ 25, 32).
November 11, 2015, Bates notified her colleague of
Cockayne's behavior at the golf event. (Id. at
¶ 42). The colleague then notified Ferguson and
Krawiecki of Cockayne's behavior. Id. Bates
claims that she was subsequently retaliated against for
making this complaint against Cockayne. (Id. at
¶¶ 45-89). She alleges, for example, that she
received threatening letters reminding her of her at-will
employment status, that she was video-taped by Cockayne and
Ferguson, that she was told on numerous occasions that
Cockayne wanted to fire her, that her work and usage of her
WestLaw and CLEAR accounts were monitored, and that a
co-worker rifled through her desk. (Id. at
¶¶ 46, 53, 75, 81, and 89).
Cockayne and Ferguson allegedly video-taped Bates, Bates met
repeatedly with members of the Bristol Police Department. As
a result of these meetings, Bates made a formal written
statement regarding Cockayne's videotaping. (Id.
at ¶¶ 54-70). Despite several requests, Bates was
not able to obtain a copy of the incident report.
(Id. at ¶ 70).
complaint also lists additional conduct by Cockayne,
occurring from December 2015 through August 2016.
(Id. at ¶¶ 53, 78, 83, and 87). For
example, Cockayne allegedly told Bates that he was going to
tell lies to Bates' husband, made defamatory comments
about Bates, read a public statement at a City Council
meeting regarding a consensual sexual relationship with
Bates, and made defamatory and sexual comments about Bates to
her co-worker. (Id.)
2016, the City of Bristol retained a consultant, Attorney
Michael Rose, to investigate Bates' claims of sexual
harassment and retaliation by Cockayne. (Id. at
¶ 73). Bates overheard her co-workers discussing the
investigation by Attorney Rose and learned that Cockayne was
making defamatory statements about her. (Id. at
6, 2016, Bates filed a complaint with the Connecticut
Commission on Human Rights and Opportunities
(“CHRO”) against the City. On August 22, 2016,
Bates amended the complaint against the City, and on
September 21, 2016, she filed four new complaints against the
additional defendants in this case--Cockayne, Krawiecki,
Ferguson, and Cockayne Lamarre. All five complaints claimed
violations of the CFEPA and Title VII. (see ECF No.
25-1 - 25-5). On March 8, 2017, the CHRO issued releases of
jurisdiction for all five complaints. (see ECF No.
25-6). Subsequently, Bates brought this action in Connecticut
Superior Court, claiming violations of the CFEPA and Title
VII. (see ECF No. 1-1). A State Marshal effected
service on the Defendants by leaving the summons and
complaint at City Hall on June 6, 2017, and Bates filed the
complaint in court on June 30, 2017. (ECF No. 1-1 at 49).
Defendants later removed the case to this Court (see
ECF No. 1), and filed a Motion to Dismiss all 17 counts in
1 and 7 are for violations of Conn. Gen. Stat. Sec.
46a-60(a)(1) by the City and Cockayne, respectively. Counts 2
and 8 are for violations of Conn. Gen. Stat. Sec.
46a-60(a)(4) by the City and Cockayne, respectively. Counts 3
and 9 are for violations of Conn. Gen. Stat. Sec.
46a-60(a)(8) by the City and Cockayne, respectively. Counts 4
and 10 are for violations of Title VII by the City and
Cockayne, respectively. Counts 5 and 11 are for intentional
infliction of emotion distress by the City and Cockayne,
respectively. Counts 6, 12, and 15 are for invasion of
privacy by the City, Cockayne, and Ferguson, respectively.
Counts 13, 14, 16, and 17 are for aiding and abetting
violations of Conn. Gen. Stat. Sec. 46a-60(a)(5) by Cockayne,
Ferguson, Krawiecki, and Cockayne Lamarre, respectively.
Rule 12(b)(1): Motion to Dismiss for Lack of Subject Matter
"case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate
it." Nike, Inc. v. Already, LLC, 663 F.3d 89,
94 (2d Cir. 2011) (internal quotation marks omitted). The
party "asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that it
exists." Luckett v. Bure, 290 F.3d 493, 497 (2d
Cir. 2002). "In resolving a motion to dismiss for lack
of subject matter jurisdiction under Rule 12(b)(1), a
district court . . . may refer to evidence outside the
pleadings." Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). The court construes the complaint
liberally and accepts all factual allegations as true.
Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188
(2d Cir. 2009).
Rule 12(b)(5): Motion to Dismiss for Insufficient Service of
defendant may move to dismiss under Fed.R.Civ.P. 12(b)(5) for
insufficient service of process. When a defendant challenges
service of process, "the burden of proof is on the
plaintiff to show the adequacy of service." Howard
v. Klynveld Peat Marwick Goerdeler, 977 F.Supp.2d 654,
658 (S.D.N.Y. 1997).
Rule 12(b)(6): Motion to Dismiss for Failure to State a Claim